Iraq

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Introduction

Quick Summary of the Context

Iraq is an Arabic word meaning ‘Arabic settlement’. The area of Iraq was founded in the 7th century and it formed part of the Ottoman Empire until its collapse. Great Britain seized Baghdad during the First World War (in 1917) and formed the modern state of Iraq when they amalgamated the three disparate provinces of Basra, Baghdad and Mosul. Following the end of WW 1 the League of Nations approved British mandate in Iraq, prompting nationwide revolt. Iraq became independent in 1932 but was re-occupied by the British during World War II following a pro-Axis coup in 1941.

The country suffered a coup d’état in 1958 (fostered by the Iraqi army). Following this the newly created Republic of Iraq decayed under the dictatorship of Abd el-Karim Qassim, who maintained the power until he was overthrown by the Baathist party.

Following another coup d’etat in 1968 the Baathists installed their followers into power and eventually Saddam Hussein, an important member of the party seized power in 1979. The following year, Saddam waged war against Iran in the so-called Iran-Iraq War and the conflict became infamous due to the usage of chemical weapons against the civilian and the military.

In 1990, Iraq occupied Kuwait, claiming this territory as a part of Iraq’s Republic. Resulting from this military action, an international coalition, led by the United States, attacked and expelled the Iraqi army from Kuwait (the so-called First Gulf war).

In 2003 a United States led invasion toppled Saddam Hussein's government, marking the start of years of violent conflict and instability in Iraq with different groups competing for power. Saddam Hussein was executed for crimes against humanity in December 2006.

The country still suffers from sectarian violence and the region is marred by political and extremist violence. Following Parliamentary elections in May 2018 the political bloc of Shia cleric Moqtada al-Sadr won most votes. Conflict along the many lines of cleavage in Iraqi society, rural versus urban, Sunni versus Shia, landholder versus peasant, Kurd versus Arab, and even Kurd versus other Kurd, continues to the present.

Type of System

The Republic of Iraq's legal system is in a period of transition in light of the 2003 invasion that led to the fall of the Baath Party. Iraq does have a written constitution, as well as a civil, criminal and personal status law. Article 1 of the Iraqi Constitution determines that “The Republic of Iraq is a single federal, independent and fully sovereign state in which the system of government is republican, representative, parliamentary, and democratic.” The Iraqi Legal system has strong ties to Western legal systems, particularly continental civil law, with Islamic principles. From the British mandate, through its nascent independence, and even in its contemporary state, a variety of forces—both external and internal—have worked to shape the development of Iraqi law. Of all these factors, two pieces of legislation stand out as the most significant in their influence: the Mejelle and the Egyptian Civil Code. [1]

Legal Aid Situation in the Country

Legal aid in Iraq effectively operates in two distinct sections. Firstly, the ‘internal system’ operating within the courts: In this instance, in line with legal provisions, judges assign a lawyer to those without legal representation through the court budget. The service is based on the defendant’s capacity to pay for defense counsel. This system is more accurately described as a public defenders service as opposed to a legal aid service, as it deals with those brought before the courts as opposed to those who wish to access the courts.

Secondly, a range of ‘external’ or externally funded initiatives, which seek to provide a ‘legal aid’ or access to justice services, to those who need to legal seek assistance or need to take cases through the courts. This system is solely operated by civil society groups variously funded by UN Agencies, the EU, USAID and national governments.

A third model has been implemented as part of the UNDP Rule of Law programme. Through the model courts programme, three legal help desks were established within selected courts. The programme effectively brings the access to justice model, i.e. a service through which people seek assistance, into the court structure.[2]

The Civil Procedures Law (No. 83, 1969) articles 293 to 298 specifically provide for legal aid for indigent applicants and requires proof of means. The provision of legal aid is to be decided by the court, which effectively rules on the request (article 294(2)). In terms of actually operating the service this falls to the Bar Association which is responsible for forming a Committee for Legal Aid. It is this Committee which allocates cases to lawyers. Lawyers are not able to refuse legal aid cases (Article 49).

Sources of Defendant's Rights

National Sources of Defendant's Rights

National sources of defendant’s rights in Iraq include the following:

- The Iraqi Constitution (2005);

- The Iraqi Penal Code 1969;

- The Iraqi Criminal Procedure Code 3 of 1971 (the “CPC” as amended to 14 march 2010);

- The Iraqi Civil Procedures Law (No. 83, 1969); and

- The Basic Human Rights Manual For Detention Officers in Iraq.

International Sources of Defendant's Rights

Iraq is a signatory to the following human rights treaties:

- Convention on the Prevention and Punishment of the Crime of Genocide (acceded to in 1959);

- International Covenant on Economic Social and Cultural Rights (signed in 1969 and entered into force on 3 January 1976);

- International Convention on the Elimination of All Forms of Racial Discrimination, signed 1969 (ratified in 1970 and entered into force on 12 February 1970);

- International Convention on the Elimination of All Forms of Discrimination Against Women (acceded to in 1986 and entered into force on 12 September 1986);

- Convention on the Rights of the Child, acceded 1994 (entered into force on 15 July 1994);

- Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; Convention for the Protection of All Persons from Enforced Disappearance;

- International Covenant on Civil and Political Rights (ICCPR, signed in 1969 and entered into force on 23 March 1976);

Insofar as relating to the ICCPR Iraq has not signed the first optional protocol (giving the right to individual petition to the Human Rights Committee) or the second optional protocol (aimed at the elimination of the death penalty).

Pre-trial Procedures

Police Procedures

Most of the rights regarding pre-trial procedures are found in the Iraqi Constitution, The Criminal Procedure Penal Code and, additionally, in the Basic Human Rights Manual For Detention Officers in Iraq.

Complaint/information

Criminal proceedings are initiated by means of an oral or written complaint submitted to an investigative judge, a [judicial] investigator, a policeman in charge of a police station, or any crime scene officer by an injured party, any person taking his place in law, or any person who knows that the crime has taken place. In addition any one of those listed can notify the Public Prosecution unless the law says otherwise (See Article 1 of the - CPC).

The complaint can only be set in motion on the basis of a complaint from the aggrieved party or someone taking his place in law in relation to the offences established by the law (See Article 3 of the CPC).

The complaint may not be dropped, cancelled or withdrawn from nor can the judgment issued on it be withdrawn from or not executed, except under the circumstances explained in the law (See Article 2 of the CPC).

Complaints are subject to a prescription period: A complaint (as set out in Article 3 of the CPC) will no longer be accepted once three months have passed from the date when the aggrieved party became aware of the offence or from the disappearance of any compelling excuse which prevented the submission of the complaint and complaints will be dropped in the event of the death of the aggrieved party unless the law stipulates to the contrary (See Article 6 of the CPC).

Arrest, Search, and Seizure Laws

One of the basic principles established by the Basic Human Rights Manual For Detention Officers in Iraq is that detainees are not being held in detention as a punishment. On the contrary, they are waiting to be tried or convicted. For this reason, both national and international regulations are fixed in order to guarantee such special status.

Arrests

The CPC determines that the arrest or apprehension of a person is permitted only in accordance with a warrant issued by a judge or court or in other cases as stipulated by the law. The arrest warrant should contain the full name of the accused, with his identity card details and physical description as well as place of residence, profession, and the type of offence to which the warrant relates. Additionally, it should contain the legal provision applied, the date of the warrant and it should be signed and stamped by the court (See Articles 92 and 93 of the CPC).

Notwithstanding these rules, the CPC also recognizes the possibility that any person may arrest another person accused of a felony or misdemeanour without an order from the authorities if:

(a) the offence is committed in front of witnesses; (b) if the person to be arrested has escaped after being arrested legally; or (c) the arrested has been sentenced in his absence to a penalty restricting his freedom.

A person may also arrest another without an order from the authorities if such a person is found in a public place in a clear state of intoxication and confusion and has created trouble or has lost his reason (See Article 102 of the CPC).

The Basic Human Rights Manual for detention Officers in Iraq also provides the following guidelines to detention officers as regards arrest:

- All detainees and prisoners lose their right to freedom of movement but they keep their rights as human beings when they are in detention;

- They must not be treated in an inhuman or degrading way; and

- International standards forbid all forms of torture. Torture does not just mean inflicting physical or mental pain. It includes all forms of inhuman or degrading treatment (See Section 1 of the Manual).

Pre-Trial Detention

The Iraqi Constitution explicitly prohibits illegal detention, as well as pre-trial imprisonment or detention in spaces not subject to the State’s control. Article 19(12) of the Iraqi Constitution states that: A. Unlawful detention shall be prohibited. B. Imprisonment or detention shall be prohibited in places not designed for these purposes, pursuant to prison laws covering health and social care, and subject to the authorities of the State.

Article 19(13) of the Iraqi Constitution also determines that “The preliminary investigative documents shall be submitted to the competent judge in a period not to exceed twenty-four hours from the time of the arrest of the accused, which may be extended only once and for the same period.” The CPC stipulates the following as regards pre-trial detention:


Article 109 [3]

A. If the person arrested is accused of an offence punishable by a period of detention exceeding 3 years or by imprisonment for a term of years or life imprisonment [4] , the judge may order that he be held for a period of no more 15 days on each occasion or order his release on a pledge with or without bail from a guarantor, and that he attend then requested if the judge rules that release of the accused will not lead to his escape and will not prejudice the investigation.

B. If the person arrested is accused of an offence punishable by death the period stipulated in sub-paragraph A may be extended for as long as necessary for the investigation to proceed until the investigative judge or criminal court issues a decision on the case on completion of the preliminary or judicial investigation or the trial.

C. The total period of detention should not exceed one quarter of the maximum permissible sentence for the offence with which the arrested person is charged and should not, in any case, exceed 6 months. If it is necessary to increase the period of detention to more than 6 months, the judge must submit the case to the Felony Court to seek permission for an appropriate extension, which must not itself exceed one quarter of maximum permissible sentence, or he should order his release, with or without bail, subject to paragraph B.


Article 110

A. If the person arrested is accused of an offence punishable by a period of detention of 3 years or less or by a fine, the judge must release him on a pledge with or without bail unless he considers that such a release will obstruct the investigation or lead to the accused absconding.

B. If the person arrested is accused of an infraction, he may not be held unless he has no particular place of residence.


Article 111

The judge who issued the decision to detain the accused may decide to release him on a pledge, with or without bail, before the end of the period of detention stipulated in sub-paragraph B of Article 109, and he may return him to the holding detention if necessary for the investigation.”

The Basic Human Rights Manual for detention Officers in Iraq also provides the following guidelines to detention officers as regards detention:


Lawful detention order

- People can only be detained in accordance with Iraqi law.

- The police may hold someone in detention for 24 hours on reasonable suspicion that they have been involved in a crime.

- After the first 24 hours detainees can only be held on the orders of an Investigative Judge.

- You must not receive anyone into detention without a valid order from a judge (See Section 2 of the Manual).

The Basic Human Rights Manual for Detention Officers in Iraq also sets out in clear detail they physical standards and conditions of detention for example, hygiene, food, water, accommodation, clothing, exercise and access to other individuals (See Section 3 of the Manual).


Searches

Article 72(A) & 72(B) of the CPC sets out the basic parameters for searches:

Article 72

A. The searching of any person or entry of any house or any business premises for the purposes of a search are not permitted other than in cases stipulated by law.

B. The search should be undertaken by the investigative judge, [judicial] investigator or a member of the police force by order of the judge, or anyone granted authority by the law.

The searching of any person or entry of any house or any business premises for the purposes of a search are not permitted other than in cases stipulated by law. Articles from 73 to 86 of the CPC establish in detail the rules on how searches must be carried out in order to be lawful.

In particular, if it is a female suspect to be searched the search must be conducted by a female appointed for the purpose, with the identity or the searcher being recorded in the record (See Article 80 of the CPC).

Enforcing the Rules (Exclusionary Rule, Nullity and other procedures to protect against illegal police procedures)

Section 6 of the Basic Human Rights Manual For Detention Officers in Iraq stipulates that detainees and prisoners who feel that their rights have been violated are entitled to make a complaint without fear of reprisals. Section 6 makes the following clear:


Submitting a complaint

Detainees and prisoners must be able to submit a complaint without fear of reprisals. You must also allow someone acting on behalf of the detainee or prisoner to submit a complaint for him. Detainees and prisoners should have an opportunity each day to submit requests and complaints to the director of the detention center or his representative.


Response to complaints

All requests and complaints must be dealt with as quickly as possible and investigated where appropriate. An appropriate response must be given to the detainee or prisoner as quickly as possible.


Right to complain to an independent body

The detainee or prisoner should be permitted to see and complain to the Ministry for Human Rights monitors and/or the Public Prosecutor. All detainees and prisoners should be allowed to see representatives of the Ministry of Human Rights in private during their weekly visits and/or the Public Prosecutor. You must also allow them to contact the Ministry by letter or telephone. The prisoners’/detainees’ requests to see these visitors and their visits must be recorded.


Interrogation

Article 123 of the CPC stipulates the procedure to be followed when questioning an accused:

Article 123[5]

A. The investigative judge or [judicial] investigator must question the accused within 24 hours of his presentation[6] , after proving his identity and informing him of the offence of which he is accused. His statements on this should be recorded, with a statement of evidence in his favour. The accused should be questioned again if necessary to establish the truth.

B. Before questioning the accused the investigative judge must inform the accused that:

(i) he or she has the right to remain silent and no adverse inference may be drawn from the accused’s decision to exercise that right;

ii) he or she has the right to be represented by an attorney, and if he or she is not able to afford representation, the court will provide an attorney at no expense to the accused;

C. The investigative judge or [judicial] investigator must determine whether the accused desires to be represented by an attorney before questioning the accused. If the accused desires an attorney, the investigative judge or [judicial] investigator shall not question the accused until he or she has retained an attorney or until an attorney has been appointed by the court.


The use of any illegal method to influence the accused to extract an admission is not permitted. Mistreatment, threats, injury, enticement, promises, psychological influence or use of drugs or intoxicants are considered illegal methods (See Article 127 of the CPC). Any confession coerced by force, threat or torture must not be relied on.


Article 37(C) of the Iraqi Constitution expressly prohibits torture or degrading treatment as a method of obtaining information from an accused and regulates as follows:

“All forms of psychological and physical torture and inhumane treatment are prohibited. Any confession made under force, threat, or torture shall not be relied on, and the victim shall have the right to seek compensation for material and moral damages incurred in accordance with the law.”


Statements of the accused are recorded in the written record by the judge or [judicial] investigator and signed by the accused and the judge or [judicial] investigator. If the accused is unable to sign, this should be recorded on the written record (See Article 128 of the CPC).


Additionally, torture and questioning standards in Iraq are guaranteed by international treaty law: The International Covenant on Civil and Political Rights, which obliges state parties to ensure an “effective remedy” for persons whose Covenant rights have been violated (article 2 (3)) as well as the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, (ratified by Iraq in July 2011).


Despite this legal framework there have been reports from several agencies alleging serious rights violations: Torture and ill treatment of detainees is alleged to occur frequently in Iraq and in the Kurdistan Iraqi Region. Amnesty International (2014) and the HRC (2013) claim that torture normally takes place during arrest and investigation, during pre-trial detention and after conviction – and is committed in particular by the police and the army.[7]


Right to Counsel

Access as well as the right to legal representation is regulated by article 123(B) and 123(C) of the CPC:

“B. Before questioning the accused the investigative judge must inform the accused that:

(i) he or she has the right to remain silent and no adverse inference may be drawn from the accused’s decision to exercise that right;

ii) he or she has the right to be represented by an attorney, and if he or she is not able to afford representation, the court will provide an attorney at no expense to the accused;


C. The investigative judge or [judicial] investigator must determine whether the accused desires to be represented by an attorney before questioning the accused. If the accused desires an attorney, the investigative judge or [judicial] investigator shall not question the accused until he or she has retained an attorney or until an attorney has been appointed by the court.”


Article 19(11) of the Iraqi Constitution also determines as follows as regard the right to legal representation:

The court shall appoint a lawyer at the expense of the state for an accused of a felony or misdemeanor who does not have a defense lawyer.


The Basic Human Rights Manual For Detention Officers in Iraq makes it clear that access to legal representation is especially important for pre-trial detainees and convicted prisoners who are still involved in the judicial process (for example they are appealing their conviction or sentence) – See in this regard Section 5 of the Manual, which stipulates as follows:

- All detainees and prisoners have the right of access to their legal representative;

- This is especially important for pre-trial detainees and convicted prisoners who are still involved in the judicial process (for example they are appealing their conviction or sentence);

- You cannot restrict a detainee’s or prisoner’s access to his legal representative.

- Interviews and correspondence between detainees or prisoners and their legal representatives are private and confidential.

- Visits by legal representatives must take place out of the hearing of detention officers.

Rights of the Accused at All Time

Criminal Law System

Double jeopardy

In following the established international criminal legal principles of autrfois acquit et autrefois convict the Iraqi Constitution establishes in Article 19(5) that an accused “may not be tried for the same crime for a second time after acquittal unless new evidence is produced.”


Legality principle

The principle of legality is enunciated in article 19(2) of the Iraqi Constitution: “There is no crime or punishment except by law. The punishment shall only be for an act that the law considers a crime when perpetrated. A harsher punishment than the applicable punishment at the time of the offense may not be imposed.”

Article 19(10) of the Iraqi Constitution also stipulates that “Criminal laws shall not have retroactive effect, unless it is to the benefit of the accused.”


Presumption of innocence

Article 19(5) of the Iraqi Constitution determines the right of all accused to be presumed innocent until proven guilty: “The accused is innocent until proven guilty in a fair legal trial.”


Standards of proof and standards for conviction

Insofar as as standards of proof are concerned the CPC determines as follows:

Article 212

The court is not permitted, in its ruling, to rely upon a piece of evidence which has not been brought up for discussion or referred to during the hearing, nor is it permitted to rely on a piece of paper given to it by a litigant without the rest of the litigants seeing it. The judge cannot give a ruling on the basis of his personal knowledge.


Article 213

A. The court's verdict in a case is based on the extent to which it is satisfied[8] by the evidence[9] presented during any stage of the inquiry or the hearing. Evidence includes admission reports, witness statements, written records of an investigation, other official discoveries, reports of experts and technicians, background information[10] and other legally established evidence.

B. One testimony is not sufficient for a ruling if it is not corroborated by background information[11] or other convincing evidence or an admission from the accused. The exception to this rule is if the law specifies a particular way of proving a case, which must be followed.

C. The court can accept an admission only if it is satisfied with it.


Procedure with witnesses

Procedures as regards calling and recording witness testimony is stipulated in chapter 2 of the CPC (See Articles 59 – 68 thereof).

Leading into the above above sections and procedures Article 58 of the CPC states as follows:


Article 58

An investigation is to commence with the recording in writing of the deposition of the plaintiff or informant, then of the testimony of the victim and other prosecution witnesses and of anyone else whose evidence the parties wish to be heard, and also the testimony of any person who comes forward of his own volition to provide information, if such information will be of benefit to the investigation, and the testimony of any other persons who the investigative judge or [judicial] investigator learns is in possession of information concerning the incident.

Witnesses are to be summoned by the investigative judge or [judicial] investigator to attend during the investigation (Article 59 (a) CPC). All witnesses will be asked for identification (Art. 60 CPC) and they will give testimony either orally or written (Art. 61 CPC). The evidence of each witness shall he heard separately but witnesses may confront each other and the accused (Art. 62 CPC).

Witnesses are meant to be a source of evidence, hence the investigative judge or [judicial] investigator must note in the record of the investigation anything he observes about a witness that may affect his fitness to give evidence or to sustain the process of giving evidence because of his age or physical, mental or psychological condition (Article 65 CPC).


Capital Punishment

Article 15 of the Iraqi Constitution guarantees, inter alia, he right to life:


Article 15

Every individual has the right to enjoy life, security and liberty. Deprivation or restriction of these rights is prohibited except in accordance with the law and based on a decision issued by a competent judicial authority.


Capital punishment is administered for certain crimes in Iraq: Section 2 of the Iraqi Penal Code (PC) states that “A felony is an offence punishable by:

(a) Death; (b) Life imprisonment; or (c) 5 to 15 years imprisonment.”


Should an accused be sentenced to the death penalty it is carried out by hanging: “The death penalty is the hanging of the condemned person by the neck until he is dead” (See Article 86 of the PC).


If there are mitigating circumstances for a felony for which the penalty is death, the penalty shall be reduced to life imprisonment or imprisonment for a term of years or detention for a period of not less than 1 year (See Article 131 of the PC). Articles 135 and 136 of the PC deal with aggravating factors that can lead to the increase of a sentence of life imprisonment to one of capital punishment.


The Coalition Provisional Authority (CPA) Order 7 Section 3(1) suspended the operation of capital punishment with effect from 10 June 2003 replacing it with life imprisonment although it was reinstated on 8 August 2004 for the following crimes:

- Crimes against the internal security of the state (Articles 190 to 197) including drug trafficking with the aim of financing or abetting the overthrow of the government by force;

- Crimes involving flooding or the use of bacteriological materials (Articles 349 and 351(1));

- Crimes relating to attacking transport systems (Articles 354 and 355);

- Premeditated murder (Article 406);

- Kidnapping (Articles 421, 422 and 423) which had not previously carried capital punishment unless rape or death was involved.


Ex Post Facto punishment

In this regard Article 19(2) of the Iraqi constitution provides as follows:

“There is no crime or punishment except by law. The punishment shall only be for an act that the law considers a crime when perpetrated. A harsher punishment than the applicable punishment at the time of the offense may not be imposed.”


Article 19(10) of the constitution also makes it clear that crime and punishment will not have retroactive effect:

“Criminal laws shall not have retroactive effect, unless it is to the benefit of the accused..”


Fair Trial Rights

Freedom from prolonged pre-trial detention

Article 19(13) of the Iraqi constitution safeguards the right to freedom from prolonged detention:

“The preliminary investigative documents shall be submitted to the competent judge in a period not to exceed twenty-four hours from the time of the arrest of the accused, which may be extended only once and for the same period.”


It is however reported alleged that prolonged detention without trial is a problem in Iraq - especially for suspects accused of committing crimes under Anti-Terrorism Laws.


Right to counsel

The rights to legal representation is protected – Article 123 of the CPC states as follows:

A. The investigative judge or [judicial] investigator must question the accused within 24 hours of his presentation[12] , after proving his identity and informing him of the offence of which he is accused. His statements on this should be recorded, with a statement of evidence in his favour. The accused should be questioned again if necessary to establish the truth.


B. Before questioning the accused the investigative judge must inform the accused that:

(i) he or she has the right to remain silent and no adverse inference may be drawn from the accused’s decision to exercise that right;

(ii) he or she has the right to be represented by an attorney, and if he or she is not able to afford representation, the court will provide an attorney at no expense to the accused;


C. The investigative judge or [judicial] investigator must determine whether the accused desires to be represented by an attorney before questioning the accused. If the accused desires an attorney, the investigative judge or [judicial] investigator shall not question the accused until he or she has retained an attorney or until an attorney has been appointed by the court.


Section 5 of the Basic Human Rights Manual for Detention Officers in Iraq is also very clear about the right to have access with one’s legal representative:

Access to legal representation

- All detainees and prisoners have the right of access to their legal representative.

- This is especially important for pre-trial detainees and convicted prisoners who are still involved in the judicial process (for example they are appealing their conviction or sentence).

- You cannot restrict a detainee’s or prisoner’s access to his legal representative.

- Interviews and correspondence between detainees or prisoners and their legal representatives are private and confidential.

- Visits by legal representatives must take place out of the hearing of detention officers.


It is reported that this right (to legal representation) is often infringed upon – in particular where Detainees are held as terrorism suspects in facilities controlled by the Ministries of Interior and Defence are often held in communicado without access to legal counsel (during the entire investigation process and in some cases until the trial) or to family.[13]


Right to a fair trial and to an impartial judge

Article 19(5) of the Iraqi constitution safeguards the right to a fair trial:

“The accused is innocent until proven guilty in a fair legal trial.”


Article (51)(F) of the CPC makes it clear that “No [judicial] investigator may perform the functions of his office for the first time unless he has passed a special course of the Judicial Institute of no less than three months if he obtained a recognized law degree or no less than a full calendar year if he holds a recognized diploma from the legal department of the technical institutes and he has sworn the following oath before the President of the Court of Appeal: I swear by Almighty God that I shall perform the functions of my office with justice and shall apply the law faithfully"


Article 88 of the Iraqi constitution also states that judges are, and must be, free and independent from interference: “Judges are independent, and there is no authority over them except that of the law. No power shall have the right to interfere in the judiciary and the affairs of justice.”


Right to non self-incrimination

The CPC protects the right to be informed upon arrest of the right to remain silent and the right to an attorney (CPA Memorandum 3). Before questioning the accused the investigative judge must inform the accused that he or she has the right to remain silent and no adverse inference may be drawn from the accused’s decision to exercise that right (See Article 123 (b) of the CPC).


Right to appeal and Habeas Corpus

Detainees in Iraq generally have a right to challenge the legality of their detention by:

- Petitioning the investigative judge prior to the case being refereed to the trial court;

- Petitioning the trial court after referral; and

- Filing an appeal after conviction when such appeal is allowed.


Rights in Prison

Conditions of Confinement

The conditions of detention and/or confinement are set out in detail in Section 3 of the Basic human Rights Manual for Detention Officers:


Physical Conditions of Detention Accommodation

You must keep different categories of detainees and prisoners separately from each other:

- Pre-trial detainees must be kept separately from convicted prisoners;

- Women must be held separately form men;

- If children and young persons are detained they must be kept separately from adults.

- If detainees or prisoners are held in dormitories or shared cells, you must assess whether they are suitable to live together.

- Each detainee must have enough space.

- All cells and dormitories must have adequate heating, lighting and ventilation.

- Every detainee or prisoner should have his own bed or mattress with clean bedding.


Food

- You must serve sufficient food free of charge for all detainees and prisoners at the normal times each day.

- The food must be of sufficient quantity and quality to maintain good health.

- The food must also meet the medical, religious and cultural needs of individual detainees and prisoners.


Water

- You must provide clean drinking water to all detainees and prisoners whenever they need it.


Hygiene

- All detainees and prisoners must have access to facilities which allow them to keep themselves clean.

- They must be able to bathe or shower as often as is necessary to maintain their personal hygiene.

- The detention center must provide soap and towels.

- Sanitary installations must be sufficient to allow detainees and prisoners to comply with their bodily needs in private and in a clean and decent manner


Clothing

- Unconvicted detainees are normally allowed to wear their own clothes.

- The authorities must supply clothing to any detainees who do not have their own suitable clothing.

- All clothing must be suitable for the region and the weather conditions.

- Detainees and prisoners must be allowed to wear their own clothing in public, for example when being taken to appear in court.

- The clothing or uniform supplied by the authorities must be appropriate and must not humiliate the detainee. The clothing must be of the normal type worn in the region.

- The detention center must provide suitable facilities to wash clothing and uniforms.


Exercise and fresh air

- All detainees and prisoners are entitled to exercise every day in the open air.

- In prisons or detention centers where prisoners or detainees work, any who do not work outside must be able to spend at least one hour in the open air each day.


Association with other prisoners

- If detainees and prisoners are kept in individual cells they must have the opportunity to spend time with others for part of each day unless it is strictly necessary for health or security reasons.

- The medical officer must authorise any refusal of association on medical grounds.


Right to Medical Care & Mental Health in Prison

Section 4 of the Basic Human Rights Manual for Detention Officers sets this out fully:

General principles

- When the state imprisons or detains someone it takes on responsibility to look after their health.

- The state must provide individual medical treatment for detainees and prisoners and healthy living conditions.

- All necessary medical care and treatment must be provided free of charge.

- The standard of medical care must be at least the same as that in the outside community.


Admission

- Detainees must be offered a medical examination when they first arrive in detention.

- If a doctor is not immediately available, detainees must be seen by a suitably qualified nurse.

- The nurse must report any concerns as soon as possible to the doctor.

- The medical examination will identify and ensure proper treatment for any existing medical condition.

- It will also identify any injuries and may protect detention officers from false allegations.

- The person carrying out the examination must report any injuries immediately to the appropriate authorities.


Treatment

- Detainees and prisoners must be able to see a suitably qualified medical officer on a regular basis.

- Women and juveniles must also be able to see specialists in women’s and children’s medicine.

- The prison administration must provide suitable premises and equipment for consultation and for emergency treatment

- They must also supply an adequate quantity of appropriate medicines.


Confidentiality

- Detainees and prisoners who require medical attention are patients. They are entitled to privacy both in consultation with medical staff and in their treatment.

- All medical consultations and treatments are confidential.

- They must be based on the needs of the detainee or prisoner and not on those of the administration.

- If safety is a serious concern, consultations may take place within sight but not within hearing of a detention officer.

- The medical records of all detainees and prisoners must remain under the control of the medical officer. They are not part of the general prison records.


Specialist treatment and treatment outside the detention center

- The administration must also make suitable arrangements for access to specialist consultation and in-patient (hospital) care.

- This requires close links with the medical services outside the prison.

• Outside treatment will involve special escort arrangements.

• The escort arrangements must be suitable and decent and must not lead to delays in the treatment of detainees or prisoners.

• The conditions in which detainees and prisoners are transported must be appropriate to their medical condition.


Healthy environment

- You must also provide healthy living conditions for detainees and prisoners. These requirements are set out in Section 3.

- The prison doctor must inspect these facilities regularly and ensure that they are healthy.

- He should advise the center’s director of any concerns.

- There is a particular risk of spreading diseases in detention if hygiene is poor or living conditions are overcrowded.

- This presents a risk not simply to the detainees and prisoners but to staff and to the wider community.


Mental Health

- Detention officers must monitor the effect of detention on the mental health of detainees and prisoners.

- You must report any concerns to a doctor, your superior or the governor.


Women's Rights in Prison

As indicated, women must be detained separately from male detainees (See section 3 of the Basic Human Rights Manual for Detention Officers) and women enjoy the same fundamental human rights afforded by the Iraqi constitution.


It has however been reported that due process violations against women occur at every stage of the judicial process (example arrest, interrogation, trial, and imprisonment), including threats and beatings and other physical and psychological abuse. It has similarly been reported that women are subjected to threats of, or actual, sexual assault – including reports that this occurs in front of family members. There are numerous reports that female detainees were forced to sign or fingerprint confessions that they were not allowed to or unable to read and it is reported that high rates of illiteracy among women render them particularly vulnerable to this occurrence. [14]


Court Procedures

Pre-Trial and Trial

Court and trial proceedings and procedures are set out fully in Section 2 (Articles 143 to 151) and Section 3 (Articles 152 to 229) of the Iraqi CPC.

Initial Court Appearance

According to article 143 of the CPC the court, on receipt of the case file, must set a date for the trial and inform the Public Prosecution, the accused and those with any connection and any of the witnesses who are to testify, by means of a written summons, at least one day before the trial in the case of an infraction, three days before for a misdemeanour and 8 days before for a felony.

Informing the accused's attorney of the order to attend does not dispense with the need to inform the accused. Furthermore, the accused must appear in person in a trial - the attendance only of his representative is not acceptable (See Article 145 of the CPC).


Charging Instrument

The charge is written down on a special piece of paper in the name of the judge issuing it, with his position and includes the name of the accused, his identity details, the place and time of commission of the offence and a legal description of the offence and the name of the victim or of the item against which the offence was committed, the way in which it was committed and the legal paragraphs which apply. The paper is dated and signed by the judge or head of the court. In setting out the description for the offence, the court is not restricted to the definition in the arrest warrant or summons or transfer decision (See Article 187(a) and (b) of the CPC).


Sentencing

The CPC states that everything that takes place in the court is written up in a report. The judge or the chief justice signs all its pages. The report must include the date of each hearing, whether it was public or closed, the names of the judge or judges who considered the case, the clerk, the representative of the Public Prosecution, the names of the accused, and other members of accused's team, the names of the witnesses, a report on the papers which were read out, the requests made, the procedures concluded, a summary of rulings, and everything else that occurred during the trial (See Article 222 of the CPC).

In order to give its ruling, the court retires. After it has formulated the ruling, the hearing is resumed publicly. The ruling is read out to the accused or its contents are made clear to him. If the verdict is guilty, then the court must issue another ruling at the same hearing with the penalty and explain them both (See Article 223 of the CPC).

Rulings are issued on the basis of consensus or a majority of the judges, and they should contain the name or names of who have issued it. It should also name the accused, the other parties and a representative of the Public Prosecution, in addition to a description of the offence he is accused of perpetrating, the paragraph of law which applies, the reasons for the court's ruling and the reasons for the level of sentence passed.

The ruling on the penalty must contain the principal and subsidiary penalty penalties impose by the court; the amount of compensation for which the court has ruled the accused or person, if any, taking civil liability to be liable; or the court's decision on the return, confiscation or destruction of assets or items claimed. The judge or the court's panel signs and dates every ruling and seals them with the seal of the court (See Article 224 of the CPC).


Quickfacts

According to the official Ministry of Human Rights there were 269 cases of death in custody between 2010 and 2012, including 32 in which “suspicion of torture” was a possible cause of death (Amnesty International, 2014). These reports have initiated some investigations regarding these deaths, however, there is barely information about the findings and consequent actions. What is more, while Iraqi authorities have acknowledged that torture and other ill-treatment continue to occur, they have suggested that they are isolated occurrences and that there is no systemic problem.

Although the law explicitly establishes that confessions under torture cannot be relied on, experts claim that there is a huge lack of accountability due to several reasons. One of them is related to article 136 (b) of the Criminal Procedure Code. This provision requires the “responsible minister” to permit referral of the accused official for trial, which has, at the end of the day, continued to be used to block prosecutions. There are generally no independent and impartial investigations into allegations of torture and other ill-treatment, allowing security forces to act with impunity.[15]


References

  1. http://www.law.fsu.edu/docs/default-source/journals/jtpl/previous-issues/volume-16-number-1.pdf?sfvrsn=4
  2. https://info.undp.org/.../Legal%20Aid%20Mapping%20Iraq%202012.doc
  3. CPA Order 31, signed 10 September 2003, published in the Official Gazette, issue 3980 of March 2004 in Section 6 states, "Notwithstanding the bail provisions contained in Paragraph 109 of the Criminal Proceedings Law No. 23 of 1971 the reviewing judge may order a person suspected of committing an offense punishable by life imprisonment to be held without bail until trial." The Arabic version of this section makes it clear that the reference is to offences punishable by ‘life which means life’ – rather than just life imprisonment as defined in Article 87 of the Penal Code
  4. As defined in Article 87 of the Penal Code No. 111 of 1969 to mean 20 years in prison rather than the concept introduced by the CPA of ‘life which means life’ for a limited range of offences
  5. Sub-sections (B) and (C) were added by CPA Memorandum 3, Section 4(c), signed 18 June 2003, published in the Official Gazette, issue 3978 of 17 August 2003. Note also CPA Memorandum 3, section 5 which provides the right to be informed upon arrest of the right to remain silent and the right to an attorney. Note also CPA Memorandum 3, section 8, which expands the right of representation at trial beyond those accused of felonies to those accused of any crimes.
  6. hudurahu meaning the point at which the accused presents himself to the authorities following a summons or is presented following an arrest. Note that the constitution in paragraph 19(13) requires the file to be produced before the investigative judge within 24 hours of an arrest
  7. https://www.hrw.org/news/2013/01/31/iraq-broken-justice-system
  8. The word ‘satisfied’ (i’qtinaiha) comes from the root qana’a and means ‘satisfied so that it is sure’ or ‘convinced’
  9. al-adhilha is the total evidence
  10. qarina is background information
  11. qarina is background information
  12. hudurahu meaning the point at which the accused presents himself to the authorities following a summons or is presented following an arrest. Note that the constitution in paragraph 19(13) requires the file to be produced before the investigative judge within 24 hours of an arrest
  13. Amnesty International, 2013; UNAMI/OHCHR, 2014. This has been acknowledged by the Ministry of Human Rights (Amnesty International, 2013).
  14. https://www.hrw.org/news/2013/01/31/iraq-broken-justice-system
  15. https://www.hrw.org/news/2013/01/31/iraq-broken-justice-system